I concur with the determination of the majority that “denying the rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1[,]” of the New Jersey Constitution.1 Ante at ___ (slip op. at 6). I can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage, and therefore dissent from the majority’s opinion insofar as it declines to recognize that right among all of the other rights and benefits that will be available to same-sex couples in the future.

I dissent also from the majority’s conclusion that there is no fundamental due process right to same-sex marriage “encompassed within the concept of liberty guaranteed by Article I, Paragraph 1.” Ante at ___ (slip op. at 5-6). The majority acknowledges, as it must, that there is a universally accepted fundamental right to marriage “deeply rooted” in the “traditions, history, and conscience of the people.” Ante at ___ (slip op. at 6). Yet, by asking whether there is a right to same-sex marriage, the Court avoids the more difficult questions of personal dignity and autonomy raised by this case. Under the majority opinion, it appears that persons who exercise their individual liberty interest to choose same-sex partners can be denied the fundamental right to participate in a state-sanctioned civil marriage. I would hold that plaintiffs’ due process rights are violated when the State so burdens their liberty interests.

1Article I, Paragraph 1, states:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

[N.J. Const. art. I, ¶ 1.]

This language constitutes our State equivalent of the Due Process and Equal Protection Clauses of the Federal Constitution.

Contents

The majority has provided the procedural and factual context for the issues the Court decides today. I will not repeat that information except as it is directly relevant to the analytical framework that supports this dissent. In that vein, then, some initial observations are appropriate.

Plaintiffs have not sought relief in the form provided by the Court -- they have asked, simply, to be married. To be sure, they have claimed the specific rights and benefits that are available to all married couples, and in support of their claim, they have explained in some detail how the withholding of those benefits has measurably affected them and their children. As the majority points out, same-sex couples have been forced to cross-adopt their partners’ children, have paid higher health insurance premiums than those paid by heterosexual married couples, and have been denied family leave-time even though, like heterosexual couples, they have children who need care. Ante at ___ (slip op. at 11). Further, those burdens represent only a few of the many imposed on same-sex couples because of their status, because they are unable to be civilly married. The majority addresses those specific concerns in its opinion.

But there is another dimension to the relief plaintiffs’ seek. In their presentation to the Court, they speak of the deep and symbolic significance to them of the institution of marriage. They ask to participate, not simply in the tangible benefits that civil marriage provides -- although certainly those benefits are of enormous importance -- but in the intangible benefits that flow from being civilly married. Chief Justice Marshall, writing for the Massachusetts Supreme Judicial Court, has conveyed some sense of what that means:

Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.

Plaintiffs are no less eloquent. They have presented their sense of the meaning of marriage in affidavits submitted to the Court:

In our relationship, Saundra and I have the same level of love and commitment as our married friends. But being able to proudly say that we are married is important to us. Marriage is the ultimate expression of love, commitment, and honor that you can give to another human being.

* * * *

Alicia and I live our life together as if it were a marriage. I am proud that Alicia and I have the courage and the values to take on the responsibility to love and cherish and provide for each other. When I am asked about my relationship, I want my words to match my life, so I want to say I am married and know that my relationship with Alicia is immediately understood, and after that nothing more needs be explained.

* * * *

I’ve seen that there is a significant respect that comes with the declaration “[w]e’re married.” Society endows the institution of marriage with not only a host of rights and responsibilities, but with a significant respect for the relationship of the married couple. When you say that you are married, others know immediately that you have taken steps to create something special. . . . The word “married” gives you automatic membership in a vast club of people whose values are clarified by their choice of marriage. With a marriage, everyone can instantly relate to you and your relationship. They don’t have to wonder what kind of relationship it is or how to refer to it or how much to respect it.

* * * *

My parents long to talk about their three married children, all with spouses, because they are proud and happy that we are all in committed relationships. They want to be able to use the common language of marriage to describe each of their children’s lives. Instead they have to use a different language, which discounts and cheapens their family as well as mine[, because I have a same-sex partner and cannot be married].

By those individual and personal statements, plaintiffs xpress a deep yearning for inclusion, for participation, for the right to marry in the deepest sense of that word. When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that “a separate statutory scheme, which uses a title other than marriage,” is presumptively constitutional, ante at ___ (slip op. at 7), we demean plaintiffs’ claim. What we “name” things matters, language matters.

In her book Making all the Difference: Inclusion, Exclusion, and American Law, Martha Minnow discusses “labels” and the way they are used:

Human beings use labels to describe and sort their perceptions of the world. The particular labels often chosen in American culture can carry social and moral consequences while burying the choices and responsibility for those consequences.

. . . .

Language and labels play a special role in the perpetuation of prejudice about differences.

[Martha Minnow, Making all the Difference: Inclusion, Exclusion, and American Law 4, 6 (1990).]

We must not underestimate the power of language. Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law. By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage.2

2Professor Michael Wald, in Same-Sex Couple Marriage: A Family Policy Perspective similarly states that “if a State passed a civil union statute for same-sex couples that paralleled marriage, it would be sending a message that these unions were in some way second class units unworthy of the term 'marriage'[,] . . . that these are less important family relationships.” 9 Va. J. Soc. Pol'y. & L. 291, 338 (2001).

[A] court must weigh the nature of the restraint or the denial against the apparent public justification, and decide whether the State action is arbitrary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial.

[Robinson, supra, 62 N.J. at 492 (citation omitted).]

Later, the Court “reaffirmed that approach [because] it provided a . . . flexible analytical framework for the evaluation of equal protection and due process claims.” Sojourner A., supra, 177 N.J. at 333. There, we restated the nature of the weighing process:

In keeping with Chief Justice Weintraub’s direction, we “consider the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction.” [In so doing] we are able to examine each claim on a continuum that reflects the nature of the burdened right and the importance of the governmental restriction.

[Ibid. (quoting Planned Parenthood, supra, 165 N.J. at 630).]

The majority begins its discussion, as it should, with the first prong of the test, the nature of the affected right. Ante at ___ (slip op. at 37). The inquiry is grounded in substantive due process concerns that include whether the affected right is so basic to the liberty interests found in Article I, Paragraph 1, that it is “fundamental.”3 When we ask the question whether there is a fundamental right to same-sex marriage “rooted in the traditions, and collective conscience of our people,” ante at ___ (slip op. at 22), we suggest the answer, and it is “no”.4 That is because the liberty interest has been framed “so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.” Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS 1836, at *56-57, 2006 N.Y. slip op. 5239, at *14 (Kaye, C.J., dissenting from majority decision upholding law limiting marriage to heterosexual couples). When we ask, however, whether there is a fundamental right to marriage rooted in the traditions, history and conscience of our people, there is universal agreement that the answer is “yes.” See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Turner v. Safley; 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1977); see also J.B. v. M.B., 170 N.J. 9, 23-24 (2001) (noting that the right to marry is a fundamental right protected by both the federal and state constitutions); In re Baby M., 109 N.J. 396, 447 (1988) (same); Greenberg v. Kimmelman, 99 N.J. 552, 571 (1985) (same). What same-sex couples seek is admission to that most valuable institution, what they seek is the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person, in a civil marriage. Of course there is no history or tradition including same-sex couples; if there were, there would have been no need to bring this case to the courts. As Judge Collester points out in his dissent below, “[t]he argument is circular: plaintiffs cannot marry because by definition they cannot marry.” Lewis v. Harris, 378 N.J. Super. 168, 204 (App. Div. 2005) (Collester, J., dissenting); see Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS 1836 at *63-64, 2006 N.Y. slip op. 5239, at *23-24 (Kaye, C.J., dissenting) (“It is no answer that same-sex couples can be excluded from marriage because ‘marriage,’ by definition, does not include them. In the end, ‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning.’” (quoting Halpern v. Attorney Gen. of Can., 65 O.R.3d 161, 181 (2003))).

3Professor Laurence Tribe has described in metaphoric terms, the relationship between due process and equal protection analyses. Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1897-98. His understanding is especially apt in respect of New Jersey's test. He finds in judges “conclusions” a “narrative in which due process and equal protection, far from having separate missions and entailing different inquiries, are profoundly interlocked in a legal double helix . . . [representing] a single, unfolding tale of equal liberty and increasingly universal dignity.” Ibid. This case is a paradigm for the interlocking concepts that support both the due process and the equal protection inquiry.

4The majority understands that “[h]ow the right is defined may dictate whether it is deemed fundamental.” Ante at ___ (slip op. at 24). By claiming that the broad right to marriage is “undifferentiated” and “abstract,” and by focusing on the narrow question of the right to same-sex marriage, the Court thereby removes the right from the traditional concept of marriage. Ante at ___ (slip op. at 24-25).

I also agree with Judge Collester that Loving should have put to rest the notion that fundamental rights can be found only in the historical traditions and conscience of the people. See id. at 205. Had the United States Supreme Court followed the traditions of the people of Virginia, the Court would have sustained the law that barred marriage between members of racial minorities and caucasians. The Court nevertheless found that the Lovings, an interracial couple, could not be deprived of “the freedom to marry [that] has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving, supra, 388 U.S. at 12, 87 S. Ct. at 1824, 18 L. Ed. at 1018. Most telling, the Court did not frame the issue as a right to interracial marriage but, simply, as a right to marry sought by individuals who had traditionally been denied that right. Loving teaches that the fundamental right to marry no more can be limited to same-race couples than it can be limited to those who choose a committed relationship with persons of the opposite sex. By imposing that limitation on same-sex couples, the majority denies them access to one of our most cherished institutions simply because they are homosexuals.

Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), in overruling Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), made a different but equally powerful point. In Bowers, the Court had sustained a Georgia statute that made sodomy a crime. 478 U.S. at 189, 106 S. Ct. at 2843, 93 L. Ed. 2d at 145. When it rejected the Bowers holding seventeen years later, the Court stated bluntly that “Bowers was not correct when it was decided, and it is not correct today.” Lawrence, supra, 539 U.S. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 525. Justice Kennedy explained further that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 579, 123 S. Ct. at 2484, 156 L. Ed. 2d at 526.

We are told that when the Justices who decided Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), finally rejected legal segregation in public schools, they were deeply conflicted over the issue. Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431, 433 (2005). “The sources of constitutional interpretation to which they ordinarily looked for guidance -- text, original understanding, precedent, and custom -- indicated that school segregation was permissible. By contrast, most of the Justices privately condemned segregation, which Justice Hugo Black called ‘Hitler’s creed.’ Their quandary was how to reconcile their legal and moral views.” Ibid. (footnote omitted). Today, it is difficult to believe that “Brown was a hard case for the Justices.” Ibid.

Without analysis, our Court turns to history and tradition and finds that marriage has never been available to same-sex couples. That may be so -- but the Court has not asked whether the limitation in our marriage laws, “once thought necessary and proper in fact serve[s] only to oppress.” I would hold that plaintiffs have a liberty interest in civil marriage that cannot be withheld by the State. Framed differently, the right that is burdened under the first prong of the Court’s equal protection/due process test is a right of constitutional dimension.

Although the majority rejects the argument I find compelling, it does grant a form of relief to plaintiffs on equal protection grounds, finding a source for plaintiffs’ interest outside of the Constitution. Ante at ___ (slip op. at 43, 58-59). Having previously separated the right to the tangible “benefits and privileges” of marriage from the right to the “name of marriage,” and having dismissed the right to the name of marriage for same-sex couples because it is not part of our history or traditions, the majority finds the right to the tangible benefits of marriage in enactments and decisions of the legislative, executive, and judicial branches protecting gays and lesbians from discrimination, allowing adoption by same-sex partners, and conferring some of the benefits of marriage on domestic partners. Ante at ___ (slip op. at 28-29, 37-43, 49).

The enactments and decisions relied on by the majority as a source of same-sex couples’ interest in equality of treatment are belied by the very law at issue in this case that confines the right to marry to heterosexual couples. Moreover, as the majority painstakingly demonstrates, the Domestic Partnership Act, N.J.S.A. 26:8A-1 to -13, does not provide many of the tangible benefits that accrue automatically when heterosexual couples marry. Ante at ___ (slip op. at 43-48). New Jersey’s statutes reflect both abhorrence of sexual orientation discrimination and a desire to prevent same-sex couples from having access to one of society’s most cherished institutions, the institution of marriage. Plaintiffs’ interests arise out of constitutional principles that are integral to the liberty of a free people and not out of the legislative provisions described by the majority. In any case, it is clear that civil marriage and all of the benefits it represents is absolutely denied same-sex couples, and, therefore, that same-sex couples’ fundamental rights are not simply burdened but are denied altogether (the second prong of the Court’s test).

Finally, the majority turns to the third prong -- whether there is a public need to deprive same-sex couples of the tangible benefits and privileges available to heterosexual couples. Ante at ___ (slip op. at 48). Because the State has argued only that historically marriage has been limited to opposite-sex couples, and because the majority has accepted the State’s position and declined to find that same-sex couples have a liberty interest in the choice to marry, the majority is able to conclude that no interest has been advanced by the State to support denying the rights and benefits of marriage to same-sex couples. Ante at ___ (slip op. at 48-49, 51). Without any state interest to justify the denial of tangible benefits, the Court finds that the Legislature must provide those benefits to same-sex couples. Ante at ____ (slip op. at 48-51). I certainly agree with that conclusion but would take a different route to get there.

Although the State has not made the argument, I note that the Appellate Division, and various amici curiae, have claimed the “promotion of procreation and creating the optimal environment for raising children as justifications for the limitation of marriage to members of the opposite sex.” Lewis, supra, 378 N.J. Super. at 185 n.2. That claim retains little viability today. Recent social science studies inform us that “same-sex couples increasingly form the core of families in which children are conceived, born, and raised.” Gregory N. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61 Am. Psychol. 607, 611 (2006). It is not surprising, given that data, that the State does not advance a “promotion of procreation” position to support limiting marriage to heterosexuals. Further, “[e]mpirical studies comparing children raised by sexual minority parents with those raised by otherwise comparable heterosexual parents have not found reliable disparities in mental health or social adjustment,” id. at 613, suggesting that the “optimal environment” position is equally weak. Without such arguments, the State is left with the “but that is the way it has always been” circular reasoning discussed supra at ___ (slip op. at 11-12).

Perhaps the political branches will right the wrong presented in this case by amending the marriage statutes to recognize fully the fundamental right of same-sex couples to marry. That possibility does not relieve this Court of its responsibility to decide constitutional questions, no matter how difficult. Deference to the Legislature is a cardinal principle of our law except in those cases requiring the Court to claim for the people the values found in our Constitution. Alexander Hamilton, in his essay, Judges as Guardians of the Constitution, The Federalist No. 78, (Benjamin Fletcher Wright ed., 1961) spoke of the role of the courts and of judicial independence. He argued that “the courts of justice are . . . the bulwarks of a limited Constitution against legislative encroachments” because he believed that the judicial branch was the only branch capable of opposing “oppressions [by the elected branches] of the minor party in the community.” Id. at 494. Our role is to stand as a bulwark of a constitution that limits the power of government to oppress minorities.

The question of access to civil marriage by same-sex couples “is not a matter of social policy but of constitutional interpretation.” Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004). It is a question for this Court to decide.

In his essay Three Questions for America, Professor Ronald Dworkin talks about the alternative of recognizing “a special ‘civil union’ status” that is not “marriage but nevertheless provides many of the legal and material benefits of marriage.” N.Y. Rev. Books, Sept. 21, 2006 at 24, 30. He explains:

Such a step reduces the discrimination, but falls far short of eliminating it. The institution of marriage is unique: it is a distinct mode of association and commitment with long traditions of historical, social, and personal meaning. It means something slightly different to each couple, no doubt. For some it is primarily a union that sanctifies sex, for others a social status, for still others a confirmation of the most profound possible commitment. But each of these meanings depends on associations that have been attached to the institution by centuries of experience. We can no more now create an alternate mode of commitment carrying a parallel intensity of meaning than we can now create a substitute for poetry or for love. The status of marriage

is therefore a social resource of irreplaceable value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed. We know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives.

[Ibid.]

On this day, the majority parses plaintiffs’ rights to hold that plaintiffs must have access to the tangible benefits of state-sanctioned heterosexual marriage. I would extend the Court’s mandate to require that same-sex couples have access to the “status” of marriage and all that the status of marriage entails.